Gipson v. Jordan

F I L E D
United States Court of Appeals
Tenth Circuit

AUG 2 2004
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ADRIAN DARRYLE GIPSON,

Petitioner - Appellee,

v. No. 02-6261

LENORA JORDAN, Warden,

Respondent - Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-98-1509-M)

William R. Holmes, Assistant Attorney General of Oklahoma (W. A. Drew
Edmondson, Attorney General of Oklahoma, with him on the briefs), Oklahoma
City, Oklahoma for the Respondent-Appellant.

Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma for the
Petitioner-Appellee.

Before SEYMOUR, and LUCERO, Circuit Judges, and CASSELL, * District
Judge.

*
The Honorable Paul G. Cassell, United States District Judge for the
District of Utah, sitting by designation.
LUCERO , Circuit Judge.

In this appeal, Lenora Jordan, Warden of the James Crabtree State

Correctional Center in Helena, Oklahoma (“Oklahoma”) seeks review of a

conditional grant of habeas relief to Oklahoma state prisoner, Adrian Gipson.

The sole issue on appeal is whether prosecutorial remarks before the sentencing

jury which referenced Gipson’s prior convictions impermissibly infringed upon

his right to be free from double jeopardy. We exercise jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253, and REVERSE the grant of habeas relief.

I

Gipson was tried by a jury for second-degree burglary. Because he had

been previously convicted of two or more felony offenses, he was subject to

punishment under Oklahoma’s habitual offender provision for a minimum term of

20 years. (Jury Instructions at 12); see also Okla. Stat. tit. 21, § 51.1(B) (habitual

offender provision). At trial, guilt and sentencing were consolidated—Gipson

admitted to the charge, thus leaving the jury to decide only his sentence. The

prosecutor informed the jury that Gipson had been previously convicted of six

felony offenses: injury to a minor child, robbery by fear, second-degree burglary,

burglary of an automobile, burglary of a vending machine, and uttering a forged

2
instrument. In closing, the prosecutor argued that Gipson has a propensity for

recidivism and stated:

I would submit to you, ladies and gentlemen, that at a minimum . . . . an
appropriate sentence would be ten years for each of the [prior] convictions,
including this one here today, which makes seven, so what I’m telling you
is that I think an appropriate sentence, at least a minimum sentence, in this
case, would be 70 years.

(R. at 185.) In instructing the jury, the district court clarified that:

[t]he defendant has admitted that he has 6 previous convictions. You may
not consider these previous convictions as proof of guilt in the case before
you. You may consider the previous convictions for the purpose of
determining the punishment if you find the defendant is guilty of the crime
of Burglary Second Degree in the present case.

(Jury Instructions at 12.) The jury recommended seventy years imprisonment, and

Gipson was sentenced accordingly.

On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”),

Gipson argued that his sentence was excessive. In the course of making that

argument, he urged: “[i]n determining the excessiveness of the sentence, the

Court should review possible improper influences upon the jury in assessing

punishment”—namely, the prosecutor’s reference to early release from the

sentences for Gipson’s prior convictions and the prosecutor’s exhortation to the

jury to sentence him to seventy years. (R. at 143, 144–45.) Gipson further stated

that “[prosecutorial] comments which asked the jurors to punish Appellant ten

years for each felony caused the jurors to violate Appellant’s right to be free from

3
double jeopardy,” and that “[t]he jury’s imposition of a sentence ten times greater

than the statutory maximum for the actual offense reflects the prejudice of the

prosecutor’s argument.” (R. at 145.) In the face of Gipson’s claim that, inter

alia, the prosecutor’s comments caused the jury to violate his double jeopardy

rights, the OCCA affirmed Gipson’s conviction and sentence, concluding that

Gipson’s sentence was “neither excessive nor the result of prosecutorial

misconduct.” Gipson v. Oklahoma, No. F-97-165, slip op. at 2 (Okla. Crim. App.

Nov. 3, 1997).

Gipson filed a federal habeas petition pursuant to 28 U.S.C. § 2254, again

challenging his sentence on double jeopardy grounds. The magistrate judge

issued a report, revised after considering objections raised by Oklahoma, which

recommended a conditional writ of habeas corpus granting relief on Gipson’s

double jeopardy claim. In July 2002, the district court issued an order adopting

the magistrate’s report. Oklahoma now appeals, arguing that the district court

failed to accord proper deference to the OCCA’s decision denying relief.

II

As a threshold matter, we must determine the appropriate standard of

review due to the OCCA’s affirmance of Gipson’s sentence. Because Gipson

filed his petition for habeas relief after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA's provisions

4
apply. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing

Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA provides that if a claim is

adjudicated on the merits in state court, we will grant habeas relief to a petitioner

only if he can establish that the state court decision was “contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1), (2).

Under the “contrary to” clause, we grant relief only “if the state court

arrives at a conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently than [the Court] has

on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

413 (2000). Under the “unreasonable application” clause, relief is provided only

“if the state court identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that principle to the facts of

the prisoner's case.” Id. Thus we may not issue a habeas writ simply because we

conclude in our “independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 411.

Conversely, if the state court did not decide a claim on the merits, and the

5
claim is not otherwise procedurally barred, we address the issue de novo and the

§ 2254(d)(1) deference requirement does not apply. See Aycox v. Lytle, 196 F.3d

1174, 1177 (10th Cir. 1999). Our standard of review therefore depends on

whether the OCCA denied Gipson’s double jeopardy claim on the merits. Where,

as here, there is no indication suggesting that the state court did not reach the

merits of a claim, we have held that a state court reaches a decision “on the

merits” even when it fails either to mention the federal basis for the claim or cite

any state or federal law in support of its conclusion. Id. at 1177.

In the instant case, in consideration of Gipson’s argument that improper

prosecutorial comments violated his double jeopardy rights, the OCCA found that

Gipson’s sentence was not the result of prosecutorial misconduct. Thus because

the OCCA upheld Gipson’s sentence in the face of his argument that prosecutorial

misconduct violated his double jeopardy rights we treat the OCCA’s decision as

an “adjudication on the merits,” and defer to its result, even though its reasoning

is not expressly stated. 1 Aycox, 196 F.3d at 1177. In so doing, however, we

1
Although the dissent, in concluding otherwise, relies on the fact that the
OCCA referenced only state cases, the Supreme Court in Early v. Packer, 537
U.S. 3, 8 (2002), made clear that under AEDPA there is no requirement that the
state court cite or even be aware of Supreme Court cases “so long as neither the
reasoning nor the result of the state-court decision contradicts them.” Id. at 8.
Moreover, unlike the Tenth Circuit cases cited by the dissent where we reasoned
that a citation to a state court decision may indicate that the state court did not
reach a federal claim, we would overreach in this instance to conclude that the
(continued...)

6
 uphold the state court's summary decision unless our independent review of
the record and pertinent federal law persuades us that its result contravenes
or unreasonably applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the evidence presented.

Id. at 1178. We stress that this “independent review” standard under Aycox does

not constitute a de novo analysis of Gipson’s claims. Instead, we defer to the

OCCA’s decision unless we conclude that its result—not its rationale—is “legally

or factually unreasonable.” Id.

Having determined the proper standard of review under AEDPA, we note

that the federal circuits addressing similar claims have diverged in determining

the standard for evaluating the prosecutorial misconduct at issue. Generally,

1
(...continued)
OCCA denied Gipson’s prosecutorial misconduct claim on a state law ground
unrelated to his double jeopardy claim. Such an argument would be compelling
if, for example, the two state cases the OCCA cited specifically addressed
Gipson’s other claims of prosecutorial misconduct—i.e., comments that the
prosecutor improperly informed the jury of possible early release or parole
considerations—yet were silent as to double jeopardy. Cf. Duckett v. Mullin,
306 F.3d 982, 991 n.1 (10th Cir. 2002). Similarly, Gipson would have a stronger
case for de novo review if he had made both a state and Fifth Amendment claim
to be free from multiple punishments, and the OCCA had referenced only the state
law claim. Cf. Ellis v. Mullin, 326 F.3d 1122, 1128 (10th Cir. 2002); Neill v.
Gibson, 278 F.3d 1044, 1053–54 (10th Cir. 2001); Romano v. Gibson, 239 F.3d
1156, 1164–66 (10th Cir. 2001). To the contrary, the OCCA’s holding that
Gipson’s sentence was not the result of prosecutorial misconduct, renders his
federal claim—that prosecutorial misconduct caused the jury to violate his double
jeopardy rights—meritless, “or otherwise result[s] in its denial.” See Ellis, 326
F.3d at 1131 (Brorby, J., dissenting) (explaining that a state court decision citing
only state law may nonetheless adjudicate the federal claim on the merits).

7
improper prosecutorial remarks will not warrant federal habeas relief unless the

remark “so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). If,

however, the challenged statements “effectively deprived the defendant of a

specific constitutional right, a habeas claim may be established without requiring

proof that the entire trial was thereby rendered fundamentally unfair,” but rather

only that the violation may not be “deemed harmless beyond a reasonable doubt.”

Mahorney v. Wallman, 917 F.2d 469, 472, 474 (10th Cir. 1990) (quotation

omitted).

Thus, for example, the Fifth Circuit in Rogers v. Lynaugh, 848 F.2d 606,

610 (5th Cir. 1988), reasoned that where prosecutorial comments are “of such

character that a jury would naturally and necessarily take [them] to be an

exhortation to assess multiple punishments for the same offense” such misconduct

implicates a “specific constitutional right.” Id. at 611. Conversely, the Ninth and

Third circuits have analyzed similar claims of prosecutorial misconduct as

generalized due process claims, and, as a result, have proceeded to examine

whether such comments deprived a defendant of his right to a fair trial. See, e.g.,

Beardslee v. Woodford, 327 F.3d 799, 821–22 (9th Cir. 2003) (applying a general

standard of review to determine whether the trial was unfair when the prosecutor

made comments suggesting that the jury punish defendant for a prior homicide);

8
Lesko v. Lehman, 925 F.2d 1527, 1545–46 (3d Cir. 1991) (applying a general

standard to evaluate whether the trial was rendered fundamentally unfair when the

prosecutor made comments instructing the jury that it had a “duty” to “even the

score,” in reference to defendant’s prior murder conviction). However, as we will

proceed to analyze below, because we cannot conclude that the OCCA’s decision

upholding Gipson’s sentence was contrary to any clearly established law, we need

not reach the question of which standard of review to apply to the claim of

prosecutorial misconduct in the instant case.

III

Under AEDPA, to warrant habeas relief, Gipson must show that the

OCCA’s determination, affirming Gipson’s sentence and impliedly finding that

the challenged prosecutorial remarks did not violate his right against double

jeopardy, was “legally or factually unreasonable,” see Aycox, 196 F.3d at 1178.

The Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend.

V, prohibits the imposition of “multiple punishments for the same offense,” North

Carolina v. Pearce, 395 U.S. 711, 717 (1969), and is enforceable against the states

through the Fourteenth Amendment. On appeal, Gipson relies by analogy on a

Fifth Circuit case in which the court concluded that prosecutorial comments

violated the Double Jeopardy Clause. See Rogers, 848 F.2d at 606. In Rogers,

9
the State introduced evidence of defendant’s three prior felony convictions during

the sentencing phase of the trial and made the following argument to the jury:

This is his fourth final conviction for a felony offense. Robbery, robbery,
burglary and now robbery again. I submit to you that each one of those
felony offenses is worth at least 10 years. He received 12 on the first three.
You put those 12 together and you come up with 36. And that is
discounting what he has done since he got out of the penitentiary. But I
submit to you that if you allocate just 10 years to each of those felony
convictions you come up with 40.

Id. at 610. Although the State in Rogers argued that the prosecutor in his closing

argument spoke primarily to Rogers’ capacity for rehabilitation and the need for

specific deterrence, the Fifth Circuit noted that the prosecutor “did not say . . .

what the three prior offenses . . . implied about [defendant’s] facility for

rehabilitation,” but rather, “the prior offenses themselves were said to be each

worth ten years.” Id. at 611. Given that the jury ultimately selected the forty-

year term advocated by the prosecutor, id. at 612, the Rogers court reasoned that

the jury had “naturally and necessarily” understood the prosecutor’s argument as

“an exhortation to assess multiple punishments for the same offense,” id. at 611.

The alleged prosecutorial misconduct in the instant case, although

borderline, is less straightforward than the misconduct presented in Rogers.

Critically, prior to referencing Gipson’s six prior convictions, and unlike the

prosecutor in Rogers, the prosecutor addressed Gipson’s facility for rehabilitation

10
and his propensity to commit future crimes in light of his prior convictions. He

stated:

Sending [Gipson] to prison for two to four years or five years hasn’t
deterred him, and I don’t know if anything short of locking him up for as
long a period of time as we can is going to deter him. So I’m telling you,
ladies and gentlemen, that I think the only way to keep Adrian Gipson from
committing a crime is to keep him locked up.

(R. at 185.)

Moreover, although we by no means commend the prosecutor’s linking

of a specific number of years to each of Gipson’s prior crimes, dispositive to

our analysis is the fact that unlike the court in Rogers (decided prior to the

AEDPA amendments), we may not engage in a de novo review of the alleged

prosecutorial misconduct in this case. Even were we inclined to grant relief on

Gipson’s double jeopardy claim, we must uphold the OCCA’s determination

unless we are persuaded that it “contravenes or unreasonably applies clearly

established federal law, or is based on an unreasonable determination of the

facts in light of the evidence presented.” Aycox, 196 F.3d at 1178. Because

we have no basis to infer that the OCCA acted unreasonably in its factual

determinations, in the absence of a clearly established contrary Supreme Court

holding at the time the OCCA issued its decision, we must defer to the

OCCA’s result. See Yarborough v. Alvarado, 541 U.S. __, 124 S.Ct. 2140,

2142 (2004).

11
 There is no Supreme Court precedent precisely addressing prosecutorial

misconduct in the context of recidivism statutes. However, the Supreme Court

has explicitly articulated that enhanced punishment for recidivist conduct does

not violate the Double Jeopardy Clause. See, e.g., Gryger v. Burke, 334 U.S.

728, 732 (1948). That is, in upholding recidivism statutes, the Court has

explicitly articulated that an enhanced punishment imposed for a later offense

based on earlier offenses “is not to be viewed as either a new jeopardy or

additional penalty for the earlier crimes,” but instead as “a stiffened penalty

for the latest crime, which is considered to be an aggravated offense because a

repetitive one.” Gryger, 334 U.S. at 732. Similarly, in Witte v. United States,

the Supreme Court explained that the “consideration of offender-specific

information at sentencing . . . does not result in ‘punishment’ for [past]

conduct.” 515 U.S. 389, 400–01 (1995) (holding that the Double Jeopardy

Clause was not violated when a defendant was convicted and sentenced for a

crime when the conduct underlying that offense had been considered in

determining the defendant’s sentence for a previous conviction); see also

Nichols v. United States, 511 U.S. 738, 747 (1994) (holding that criminal

history provisions in the Sentencing Guidelines and state recidivist statutes

“do not change the penalty imposed for the earlier conviction”); Moore v.

Missouri, 159 U.S. 673, 677 (1895) (reasoning that recidivist statutes do not

12
punish the accused for previous offenses but rather “the punishment is for the

last offense committed, and it is rendered more severe in consequence of the

situation into which the party had previously brought himself”) (quotation

omitted). Thus in the context of alleged prosecutorial misconduct, the Ninth

Circuit has held that prosecutorial comments to a sentencing jury that

referenced defendant’s prior convictions do not deprive the defendant of a fair

trial when they are presented to the jury through “the lens of an aggravating

factor.” See Beardslee, 327 F.3d at 822–23 (concluding that although a

prosecutor’s references to defendant’s prior homicide conviction “pushed the

boundaries of permissible argument,” such comments were unlikely to confuse

the jury in light of the judge’s instructions and other proper prosecutorial

comments referring to the prior homicide as an aggravating circumstance).

With these precedents in mind, we conclude that the OCCA’s decision is

not contrary to clearly established federal law. Lacking either countervailing

Supreme Court precedent or an indication that the OCCA’s determination of

the facts in this case is manifestly unreasonable, we defer to the OCCA’s

affirmance of Gipson’s sentence. Accordingly, the district court’s grant of

conditional habeas relief is REVERSED.

13
CASSELL, District Judge sitting by designation, dissenting.

Because I believe the Oklahoma Criminal Court of Appeals did not

reach the merits of Gipson’s double jeopardy claim, I would apply a de novo

standard of review to that claim. Reviewing that claim de novo, I agree with

the District Court that Gipson’s seventy-year sentence was obtained in

violation of the prohibition against double jeopardy. Therefore, I respectfully

dissent.

I. The Appropriate Standard of Review

As the majority explains, Gipson’s petition must be resolved under the

standards provided by the Antiterrorism and Effective Death Penalty Act.

Under AEDPA, a deferential standard of review applies to prisoners raising a

“claim that was adjudicated on the merits in State court proceedings.” 1 For

such a claim, we will grant habeas relief to a petition only if the state court

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme court of the United

States” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 2 On the other hand, for

a properly-presented claim that the state court failed to decide on the merits,

1
28 U.S.C. § 2254(d).
2
28 U.S.C. § 2254(d)(1), (2).

1
the deferential standard of review does not apply, and we will address the

issue de novo. 3

The majority asserts that the deferential standard of review applies here

because “there is no indication suggesting that the state court did not reach the

merits.” 4 I disagree; as the District Court concluded below in adopting a

carefully-reasoned opinion of the magistrate judge, the only indicators in the

state court’s opinion suggest the OCCA did not actually reach the merits.

A brief review of the procedural background will clarify the issues.

Gipson raised a double jeopardy claim before the OCCA, along with other

claims that his sentence was excessive and that the prosecutor had improperly

referred to the possibility of early release on parole. 5 All of these separate

claims were interwoven in a single “Proposition I” (apparently an unfortunate

source of later confusion). In any event, the OCCA issued a summary, two-

page opinion rejecting Gibson’s claims, including Proposition I. 6 Regarding

Proposition I, the OCCA’s opinion stated only: “In reaching our decision we

3
See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).
4
Ante at 6 (emphasis removed).
5
R. at 141-144.
6
Gipson v. Oklahoma, No. F-97-165, slip. op. (Okla. Crim. App. Nov. 3,
1997) (R. at 22-23).

2
find in Proposition I that Appellant’s sentence was within statutory limits, and

was neither excessive nor the result of prosecutorial misconduct.” 7 The

opinion also cited two Oklahoma cases concerning prosecutorial misconduct. 8

Relying on this single sentence, the majority applies a deferential

standard of review to the OCCA’s decision because “there is no indication

suggesting that the state court did not reach the merits of a claim.” 9 I read the

record differently. As the majority implicitly concedes, the OCCA never

indicated that it was addressing the merits of Gipson’s double jeopardy claim.

Moreover, the text of the OCCA’s terse opinion suggests the OCCA treated

Gipson’s double jeopardy claim solely as a prosecutorial misconduct claim.

The critical sentence in the opinion explains that the OCCA rejected Gipson’s

Proposition I because his sentence “was within statutory limits, and was

neither excessive nor the result of prosecutorial misconduct.” Thus, the

OCCA took pains to mention the issues of (1) the authorization for Gipson’s

sentence (“within statutory limits”), (2) the disproportionate nature of the

sentence (“was [not] excessive”), and (3) the prosecutor’s misconduct (not

“the result of prosecutorial misconduct”). The natural inference from the

7
Id. at 2 (R. at 22).
8
Id. at 2 (citing Applegate v. State, 904 P.2d 130 (Okla. Crim. App. 1995);
Jones v. State, 764 P.2d 914 (Okla. Crim. App. 1988)) (R. at 22).
9
Ante at 6 (emphasis removed).

3
OCCA’s failure to mention Gipson’s double jeopardy claim is that the court

did not reach it.

The distinction between a standard prosecutorial misconduct charge and

Gipson’s double jeopardy claim is important. Where a habeas petitioner’s

claim is based on prosecutorial misconduct the petitioner must demonstrate

that the prosecutor’s misconduct “made [the] trial so fundamentally unfair as

to deny him due process.” 10 However, “when the impropriety complained of

effectively deprived the defendant of a specific constitutional right, a habeas

claim may be established without requiring proof that the entire trial was

thereby rendered fundamentally unfair.” 11 Thus, in Coleman v. Saffle, 12 for

example, this court applied a fundamental fairness standard to misstatements

10
Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974).
11
Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (citing
DeChristoforo, 416 U.S. at 643); see also Le v. Mullin, 311 F.3d 1002, 1013 (10th
Cir. 2002) (“Generally, a prosecutor’s improper remarks require reversal of a state
conviction only if the remarks so infected the trial with unfairness as to make the
resulting conviction a denial of due process . . . Alternatively, if the alleged
prosecutorial misconduct denied the petitioner a specific constitutional right
(rather than the general due process right to a fair trial), a valid habeas corpus
claim may be established without proof that the entire trial was rendered
fundamentally unfair.”) (citation omitted).
12
869 F.2d 1377 (10th Cir. 1989).

4
of a prosecutor because the statements did not “implicate other specific rights

of the accused such as the right to counsel or the right to remain silent.” 13

While much of Gipson’s brief to the OCCA focused on general

prosecutorial misconduct, he also clearly alleged a violation of his right to be

free from double jeopardy. Specifically, Gipson argued that “[t]he prosecutor

was asking the jurors to re-punish Appellant on crimes for which Appellant

already had served the time . . . . In essence, the comments which asked the

jurors to punish Appellant ten years for each felony caused the jurors to

violate Appellant’s right to be free from double jeopardy, by subjecting him to

multiple punishments for the same offense.” 14 The fact that the OCCA did not

address the distinction between general prosecutorial misconduct claims and

those claims which implicate a specific constitutional right is further evidence

that the OCCA did not reach the merits of Gipson’s double jeopardy claim.

To avoid this conclusion, the state argues here that the OCCA’s

rejection of the prosecutorial misconduct claim was necessarily a rejection of

the double jeopardy claim because “double jeopardy was the only point raised

13
Id. at 1395. See also Brinlee v. Crisp, 608 F.2d 839 (10th Cir. 1979)
(fundamental fairness standard not appropriate because Defendant’s specific
constitutional right to “presumption of innocence” was implicated).
14
R. at 145 (emphasis added).

5
in support of the prosecutorial misconduct argument.” 15 The state’s position

on this issue has, to put it charitably, evolved. In the District Court, the state

argued initially that Gipson was procedurally barred from even pursuing a

double jeopardy claim because he never presented a double jeopardy claim to

the OCCA. 16 In any event, the state’s current position is simply untrue. As the

District Court noted, Gipson “raised two different arguments relating to

prosecutorial misconduct, one of which implicated his double jeopardy rights

and one that did not.” 17 Gipson argued before the OCCA, for example, that the

prosecutor improperly told the jury of the possibility of early release and

improperly attempted to get the jury to take pardon and parole issues into

consideration. 18 After putting forth these claims of prosecutorial misconduct

Gipson continued: “The prosecutor in this case also improperly argued . . . .”

Gipson then sets forth his double jeopardy argument and, as noted above,

plainly states that his “right to be free from double jeopardy” had been

15
Appt’s Br. at 9 (emphasis in original).
16
See Supplemental Report and Recommendation (Nov. 8, 2001) (R. at
113).
17
Id. (R. at 114 n.4.).
18
R. at 144.

6
violated. 19 Gipson’s pleading may not have been artful in that his double

jeopardy claim was raised in the context of general complaints about

prosecutorial misconduct. However, this only confirms my belief that the

OCCA did not reach Gipson’s double jeopardy claim, instead deciding only

that the sentence was “not the result of prosecutorial misconduct.” 20 As this

Court has noted before, “the language of [AEDPA] focuses on whether the

‘claim’ was adjudicated, not whether the ‘case’ was adjudicated.” 21 Gipson’s

double jeopardy claim does not appear to have been adjudicated.

This reading of the OCCA’s opinion is further supported by the two case

citations in it. The first case, Applegate v. State, 22 involved prosecutorial

vouching. The court in that case concluded that “the prosecutor’s comments

were all fair comments on the evidence and not admitted in error.” 23 The

second case cited by the OCCA, Jones v. State, 24 also involved vouching. In

that case the court found that the comments of the prosecutor, while improper,

19
R. at 145.
20
Supplemental Report and Recommendation (Nov. 8, 2001) (R. at 113).
21
Le, 311 F.3d at 1011 n.2.
22
904 P.2d 130 (Okla. Crim. App. 1995).
23
Id. at 137.
24
764 P.2d 914 (Okla. Cr. App. 1988).

7
did not prejudice the jury. 25 As the District Court concluded below, “It is

unclear from these citations whether the OCCA found the prosecutor’s

statements were ‘fair statements’ that did not in the first instance rise to the

level of prosecutorial misconduct, or whether the OCCA found prosecutorial

misconduct, but determined reversal was not warranted because the statements

did not ‘affect the outcome of the trial.’” 26

Given this procedural history, the best that can be said is the OCCA

might have decided Gipson’s claim on the merits, but the specific indications

in the opinion suggest that it did not. In such circumstances, this Circuit’s

cases hold that it is inappropriate to give AEDPA deference. It may well be

that this Court’s decisions on when a claim has been adjudicated on the merits

are, in the words of Judge Brorby, “not . . . consistent” and “apparently

conflict[ing]. 27 But from the cases can be distilled the principle that “[w]e will

grant deference to a state court decision under the Antiterrorism and Effective

Death Penalty Act unless the decision provides some affirmative indication

25
Id. at 916-17.
26
Supplemental Report and Recommendation (Nov. 8, 2001) (R. at 115).
27
Ellis v. Mullin, 326 F.3d 1122 (10th Cir. 2002) (Brorby, J., dissenting)
(word order rearranged in first quotation).

8
that the state court did not consider the federal claim.” 28 The majority adopts

this principle in stating that where “there is no indication suggesting that the

state court did not reach the merits” 29 then AEDPA deference should apply.

My disagreement with the majority is that I believe there is an

“affirmative indication” that the OCCA did not reach the double jeopardy

claim on the merits. The most persuasive affirmative indication that the

OCCA failed to consider the double jeopardy claim is that court’s mention of

other claims and cases supporting those claims, without mention of the double

jeopardy claim. That alone is sufficient to take this case outside of AEDPA’s

deferential standard of review and subject it instead to de novo review.

This conclusion was reached on very similar facts in Neill v. Gibson. 30

There, this Court refused AEDPA deference in reviewing a federal claim on

habeas where the decision of the state court was based solely on state law

grounds. 31 The petitioner’s claim in Neill was whether in a capital case the

trial court erred in refusing to instruct the jury that, if it failed to reach a

unanimous decision as to punishment, under state law the judge would enter a

28
Id. (Brorby, J., dissenting).
29
Ante at 6 (emphasis removed).
30
278 F.3d 1044 (10th Cir. 2001), cert. denied, 537 U.S. 835 (2002).
31
Id. at 1053.

9
sentence of life imprisonment. 32 The prosecutor had misinformed the jury

during closing arguments that the defendant would have to be retried. 33 Neill

was convicted and sentenced to death and his conviction affirmed on direct

appeal. Neill then sought post-conviction relief in the OCCA, raising both a

state claim regarding failure to instruct the jury about the consequences of

their failure to agree and a federal Eighth Amendment claim regarding the

prosecutor’s misstatement about the need for a retrial. In rejecting the

petitioner’s appeal, the OCCA stated that “this contention” had been rejected

in two state cases. 34 The two cases cited by the OCCA addressed only the

question of whether the court was required to instruct the jury about the result

of their failing to reach a unanimous decision concerning punishment. 35

Neither case involved any Eighth Amendment question about misleading the

jury regarding its role. This Court treated the citation of these two cases on

state law issues as sufficient reason for determining that the OCCA had not

adjudicated the Eighth Amendment claim on the merits.

32
Id.
33
Id. at 1053.
34
Id.
35
Brogie v. State, 695 P.2d 538, 547 (Okla. Crim. App. 1985); Boltz v.
State, 806 P.2d 1117, 1124 (Okla. Crim. App. 1991), cert. denied, 502 U.S. 846
(1991).

10
 This Court reached a similar result in Ellis v. Mullin. 36 In that case,

Ellis argued that the trial court had violated his federal due process rights by

refusing to permit him to present evidence of schizophrenia. 37 In support of

this claim Ellis cited the Supreme Court case of Chambers v. Mississippi. 38

The OCCA rejected his claim. Reviewing his habeas petition this Court

overturned the decision of the OCCA and found that Ellis had been denied his

right to due process. More important for this case is the fact that this Court

did not apply the AEDPA standard of deference. This Court noted that Ellis

had raised a federal constitutional claim but that the OCCA “upheld the

exclusion without any reference to Ellis’s Chambers claim, holding only that

the report properly was excluded under state law . . . Because the OCCA did

not consider Ellis’s federal constitutional claim, our review is de novo.” 39

This Court effectively reached the same conclusion in Romano v.

Gibson. 40 In that case, this court applied a de novo standard of review to a

habeas claim where the petitioner had raised federal claims but the OCCA

36
326 F.3d 1122 (10th Cir. 2002).
37
Id. at 1128.
38
410 U.S. 284 (1973).
39
Ellis, 326 F.3d at 1128.
40
239 F.3d 1156 (10th Cir. 2001).

11
“addressed these claims only under state law.” 41 Thus, in Neill v. Gibson, Ellis

v. Mullin, and Romano v. Gibson, the sole fact that the state court cited only

state court opinions which did not relate to the federal question involved was

taken to be an affirmative indication that the constitutional question was not

reached on the merits.

That a state court decided an issue with reference only to state law was

also taken as an affirmative indication that the merits of the federal issue were

not reached in this Court’s decision in Knighton v. Mullin. 42 There, the OCCA

“applied only state evidentiary rules” in determining whether evidence of

petitioner’s other crimes was properly introduced at trial. On a habeas petition

before us, this Court declined to apply AEDPA deference to a federal

challenge to use of that evidence, concluding that “the Oklahoma appellate

court did not specifically address it.” 43

This Court has also taken it as an affirmative indication that a federal

issue was not addressed on the merits where the state court thoroughly

addressed some of the petitioner’s claims, but completely failed to address

41
Id. at 1166.
42
293 F.3d 1165 (10th Cir. 2002), cert. denied, 538 U.S. 930 (2003).
43
Id.

12
another. Thus, in Duckett v. Mullin, 44 this Court rejected AEDPA deference in

a case where the state court had “meticulously addressed” each of the

petitioner’s 30 claims, except for the single claim at issue in the habeas

petition which was “not resolve[d] either individually or generically.” 45

Because the state court was so meticulous with respect to the other 29 claims,

the Court stated that it could “only conclude that the OCCA did not render a

decision on this claim” 46 While the state court in Duckett meticulously dealt

with all of the claims but one, thus raising a strong suspicion that the

remaining issue was not dealt with on the merits, the general proposition of

that case – that a failure to address one issue while addressing others – also

raises at least a suspicion in this case that the double jeopardy issue was not

addressed on the merits by the OCCA.

Indeed, this Court’s cases have apparently even found an affirmative

indication that a claim was not reached where the state court did nothing more

than summarily affirm. In Smith v. Scott, 47 this Court refused to grant

deference under the AEDPA where the OCCA, without citation to law or

44
306 F.3d 982 (10th Cir. 2002), cert. denied, 538 U.S. 1004 (2003).
45
Id. at 991 n.1.
46
Id.
47
223 F.3d 1191 (10th Cir. 2000).

13
authority, summarily affirmed a lower court ruling against the petitioner on an

ex post facto claim. This Court declined to give deferential review to such a

decision, simply holding that the OCCA’s decision “[did] not address

[petitioner’s] ex post facto claim ‘on the merits.’” 48

Under all these cases, we should conclude that the OCCA did not

resolve Gipson’s double jeopardy claim on the merits. Like Neill and Ellis,

the cases cited by the OCCA here apparently did not bear on Gipson’s double

jeopardy claim, but rather on the general allegation of prosecutorial

misconduct. Like Knighton, the OCCA did not specifically address Gipson’s

claim. Like Duckett, the OCCA specifically mentioned several of Gipson’s

claims, but not the claim he presses here. And finally, like Smith, we have

essentially nothing more here than a summary affirmance. If we are to be

faithful to these decisions, I do not see how we can treat the OCCA’s decision

as having been on the merits. Accordingly, I would find we have affirmative

indications that the OCCA did not decide Gipson’s double jeopardy claim on

the merits and would not give the OCCA’s decision deference under AEDPA.

Because I see affirmative indications that the OCCA did not reach the

double jeopardy claim, I am not faced with the difficult question of what to do

with only debatable indications. But were I faced with such circumstances, I

48
Id. at 1193 n.1.

14
would be quite reluctant to presume an adjudication on the merits. To be sure,

such a presumption draws some support from this Court’s decision in Aycox v.

Lytle, 49 which found an adjudication on the merits and gave deference to a

state court opinion that articulated no reasoning. But at the same time, such a

presumption seems at odds with such decisions as Smith v. Scott, where we

proceeded to review an essentially summary affirmance de novo. Perhaps this

Court will address en banc these apparently conflicting cases, as Judge Brorby

has suggested. 50 But pending further clarification, I would err in the direction

of finding that a summary opinion did not reach a claim on the merits. Such

an approach seems more appropriate given the competing interests at stake.

On the one hand, Gipson argues that the state sentenced him to seventy years

in prison in contravention of his constitutional right to be free from double

jeopardy. The prohibition against double jeopardy is “fundamental to our

system of justice.” 51 By comparison, the state’s interest appears relatively

modest. The state seeks only to have a deferential standard of review applied

to petitioner’s constitutional claim. If the state loses this argument, all that

happens is that this Court applies its ordinary standard of review – in other

49
196 F.3d 1174 (10th Cir. 1999).
50
Ellis, 326 F.3d at 1131 (Brorby, J., dissenting).
51
United States v. Dixon, 509 U.S. 688, 728 (1993) (White J. concurring);
see also Benton v. Maryland, 395 U.S. 784, 794 (1969).

15
words, this Court will determine whether the state court’s decision on a matter

of federal constitutional law was legally correct. The consequences of

erroneous decision against the petitioner far outweigh the risks to the state.

For these reasons, I believe it may be wise generally to require the state to

shoulder the burden of proving that a federal claim was actually adjudicated on

the merits in state court, rather than presuming otherwise. In this case, though,

regardless of the precise placement of the burden, I am convinced that the

OCCA did not adjudicate Gipson’s claim on the merits and therefore that

AEDPA deference is not appropriate.

II. Merits of the Double Jeopardy Claim

Turning, then, to the merits of Gipson’s claim, the Double Jeopardy

Clause of the Constitution provides that no person shall be “subject for the

same offence to be twice put in jeopardy of life or limb.” 52 As the majority

notes, improper prosecutorial comments do not merit habeas relief unless they

so infected the trial as to render it “fundamentally unfair.” 53 However, like the

District Court below, I would hold that Gipson’s specific constitutional right

to be free from double jeopardy was implicated. Therefore, Gipson “need

establish only the infringement of that particular constitutional right, and need

52
U.S. C ONST . AMEND . V.
53
Mahorney, 917 F.2d at 472.

16
not show that the comment rendered the entire trial fundamentally unfair.” 54

As the Supreme Court has explained, “When specific guarantees of the Bill of

Rights are involved, [the Court] has taken special care to assure that

prosecutorial misconduct in no way impermissibly infringes them.” 55

Gipson’s double jeopardy claim rests upon the following statement of

the prosecutor to the jury:

I would submit to you, ladies and gentlemen, that at a
minimum, at a minimum, from the State’s point of view, an
appropriate sentence would be ten years for each of the convictions,
including this one here today, which makes seven, so what I’m
telling you is that I think an appropriate sentence, at least a minimum
sentence, in this case, would be 70 years. 56

The question before this Court, as the Fifth Circuit put it in a very similar

case, is “whether the jury understood the State’s contested argument viewed in

context to be urging a [seventy]-year prison term for reasons of specific

deterrence and rehabilitation or whether it understood that argument to be

urging multiple punishments for the same offense.” 57 The majority frames the

question the same way, noting that “an enhanced punishment imposed for a

54
Pickens v. Gibson, 206 F.3d 988, 997 (10th Cir. 2000).
55
DeChristoforo, 416 U.S. at 643
56
Supplemental Report and Recommendation (Nov. 8, 2001) (R. at 118).
57
Rogers v. Lynaugh, 848 F.2d 606, 611 (5th Cir. 1988).

17
later offense based on earlier offenses ‘is not to be viewed as either a new

jeopardy or additional penalty for earlier crimes,’ but as ‘a stiffened penalty

for the latest crime, which is considered to be an aggravated offense because a

repetitive one.’” 58

In this case, I believe the prosecutor urged an additional penalty for

earlier crimes, not a stiffened penalty for the latest crime. While it is true that

the prosecutor in his closing remarks made reference to Gipson’s prospects for

recidivism, the prosecutor’s remarks did not ask the jury to “enhance”

Gipson’s sentence based on his past crimes, but rather to give Gipson ten years

for “this” crime and ten years for “each of the [other] convictions.” 59

The Fifth Circuit case of Rogers v. Lynaugh, 60 analyzed extensively by

the court below, is persuasive on this point. In Rogers, during closing

arguments at a sentencing hearing, the prosecutor referred to three prior felony

convictions and urged the sentencing jury:

This is his fourth and final conviction for a felony offense.
Robbery, robbery, burglary and now robbery again. I submit to you
that each one of those felony offenses is worth at least 10 years. He
received 12 on the first three. You put those 12 together and you
come up with 36. And that is discounting what he has done since he

58
Ante at 12 (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948).
59
R. at 118 (emphasis added).
60
848 F.2d 606.

18
 got out of the penitentiary. But I submit to you that if you allocate
just 10 years to each of those felony convictions you come up with
40. 61

Like the State in this case, the government in Rogers argued that the

comments of the prosecutor were relevant to rehabilitation and deterrence and

urged only a stiffened penalty for the crime before the jury. The Fifth

Circuit rejected that contention and found that the prosecutor’s statements

were “an exhortation to assess multiple punishments for the same offense”:

The State’s argument did not say that what the three prior
offenses taken together implied about Rogers’ facility for
rehabilitation and his violent propensities warranted a forty-year
prison term. Instead, the prior offenses themselves were said to be
each worth ten years . . . . If the jury followed the State’s urging, the
jury allocated ten years for the instant offense, leaving thirty years of
a forty-year prison term to be otherwise accounted for . . . . The State
was thus necessarily urging the jury to assess a new punishment in
addition to the earlier punishment (and thus multiple punishments)
for each of the three prior offenses. 62

The majority does not disagree with Rogers on the merits, but instead

attempts to distinguish it. While agreeing that the improper statements here

were “borderline,” 63 the majority ultimately concludes (under a deferential

standard of review) that the statements were “less straightforward than the

61
Id. at 610.
62
Id.
63
Ante at 10.

19
misconduct presented in Rogers” because the prosecutor here “addressed

Gipson’s facility for rehabilitation and his propensity to commit future crimes

in light of his prior convictions.” 64 To be sure, the prosecutor here discussed

these obvious issues during the course of an extended argument to the jury.

However, the issue of rehabilitation and recidivism was also joined in Rogers;

while the prosecutor did not address rehabilitation and deterrence, Rogers’

counsel did, 65 thus making the jury aware of these considerations and

seemingly placing the prosecutor’s remarks in the context of a response to

such concerns. More important, the decisive factor in Rogers was that “the

prior offenses themselves were said to be each worth ten years.” 66 Likewise,

in this case the prosecutor told the jury that “an appropriate sentence would be

ten years for each of the convictions, including this one here today.” 67 In other

words, the prosecutor directly told the jury that an appropriate sentence for the

crime for which Gipson was on trial was ten years, and the other sixty years

was allocated at ten years for each of the other six prior convictions. Thus,

regardless of any other statements in the prosecutor’s remarks about

64
Ante at 11.
65
Rogers, 848 U.S. at 612 n.25.
66
Id. at 611.
67
R. at 118 (emphasis added).

20
rehabilitation and deterrence, the prosecutor asked the jury to punish Gipson

again for each of his six prior convictions. And the end result? Just as the

jury did in Rogers, Gipson’s jury gave the prosecutor exactly what he

requested — ten years for each of the seven convictions.

Further, contrary to the State’s argument, the fact that Gipson’s

prosecutor said that seventy years should be a “minimum” or “a starting point”

is irrelevant. 68 This rhetorical flourish does not alter the fact that the

prosecutor was asking the jury to punish Gipson for “each” of the prior

offenses – the very things the Double Jeopardy Clause forbids. If the jurors

wanted to punish Gipson even more than ten years for each of the prior

offenses, the prosecutor was making clear that they should feel free to do so.

But at the end of the day, the jury apparently followed the prosecutor’s

unconstitutional “starting point” analysis. As the District Court explained

below, “the very fact of the availability of this broad range of punishment is,

in part, what makes the finding of a double jeopardy violation inescapable.

The jury, even given a wide degree of sentencing possibilities, chose the exact

sentence recommended by the prosecutor.” 69

68
Id.
69
Report and Recommendation (Mar. 23, 2000) (R. at 46).

21
 The Third Circuit case of Lesko v. Lehman 70 follows parallel reasoning.

Lesko had previously pled guilty to one murder and was on trial for another.

Sentencing was to be done separately. During his closing arguments for the

second murder, the prosecutor told the jury, “I want you to remember this: We

have a death penalty for a reason. Right now, the score is John Lesko . . . two,

society nothing. When will it stop? When is it going to stop? Who is going

to make it stop? That is your duty.” 71 The Third Circuit found that the

prosecutor’s statements were “clearly improper”:

[T]he prosecutor’s suggestion that the jury had a “duty” to
even the “score,” which stood at “John Lesko . . . two, Society
nothing,” invited the jury to impose the death sentence not only for
the Miller murder, but also for the Nicholls murder — a crime to
which Lesko had already pled guilty, and for which he would be
separately sentenced. As the appellees point out, the sentencing jury
could properly consider a prior murder conviction as an “aggravating
circumstance” . . . . However, the jury had no authority to impose the
death penalty for the Nicholls murder itself. The prosecutor’s
suggestion that the jury had a “duty” to do so was clearly improper. 72

The Third Circuit then cited Rogers v. Lynaugh for the proposition that “an

‘exhortation to assess multiple punishments for the same offense’” is a

70
925 F.2d 1527 (3rd Cir. 1991).
71
Id. at 1540-41.
72
Id. at 1545.

22
violation of the double jeopardy clause. 73 The prosecutor’s questions to the

jury: “When is it going to stop? Who is going to make it stop?,” might appear

to place his comments in the context of deterrence. However, the Third

Circuit held it was “clearly improper” for the prosecutor to ask the jury to

punish Lesko again for a murder to which he had previously pled guilty. In

this case, the prosecutor did not implore the jury that it was their “duty” to

punish Gipson for his previous convictions. But the underlying principle is the

same — like Lesko’s jury, Gipson’s jury was implored to punish Gipson again

for his previous convictions.

One last case mentioned by the majority deserves brief discussion. In

the Ninth Circuit case of Beardslee v. Woodford, 74 the defendant was on trial

for two murders. During closing statements the prosecutor referred to a third

murder on several occasions and told the jury that they were “chosen to

determine what the punishment should be for the defendant who sits before

you, responsible now for three murders.” 75 While noting that the prosecutor’s

comments “pushed the boundaries of permissible argument” the court rejected

the defendant’s habeas petition. While the three murders were referred to as a

73
Id. at 1545-46 (quoting Rogers, 848 F.2d at 611).
74
358 F.3d 560 (9th Cir. 2004).
75
Id. at 584.

23
group, the prosecutor “differentiated between the California and Missouri

killings, referred to the guilt phase jury’s finding of guilt only with respect to

the two murders, [and] correctly labeled the Griffin killing as an ‘aggravating

factor.’” 76 The Ninth Circuit also found it important that the jury instructions

labeled the third murder an “aggravating circumstance” and that the

defendant’s attorney had also addressed the issue. 77 “In these circumstances,”

the court concluded, “it seems unlikely that the jury was confused about the

proper role of the Missouri homicide.” 78

This case is far more like Rogers and Lesko than like Beardslee.

Beardslee distinguished Rogers and Lesko because “the prosecutor’s comments

in these two cases linked more explicitly the jury’s sentencing duty to the prior

crimes themselves, rather than through the lens of an aggravating factor.” 79

Here, there was no reference to prior convictions as a mere aggravating factor.

The Ninth Circuit also found it important to note that in Rogers the jury

“adopted exactly that sentence” which the prosecutor had recommended. 80

76
Id. at 584.
77
Id. at 585.
78
Id.
79
Id.
80
358 F.3d at 585.

24
Here, too, the jury – given a wide range of choices – selected exactly the

sentence urged by the prosecutor.

Finally, the majority states that while the prosecutor urged the jury to

sentence Gipson to ten years for “each” of his prior convictions, these

statements were “clarified” 81 by the jury instruction telling the jury they “may

not consider the previous convictions as proof of guilt in this case before you”

but that the jury could consider them “for the purpose of determining the

punishment if you find the defendant is guilty of the crime” charged. 82 I do

not believe this jury instruction corrected the prosecutor’s comments for the

simple reason the corrective instruction was never intended to cure any double

jeopardy violation. The instruction merely told the jurors that they could not

consider the previous convictions as proof of guilt – a moot point, since

Gipson admitted guilt. More important, the instruction told the jurors that they

could consider the previous convictions “for the purpose of determining

punishment.” Because the instruction did not tell the jury to avoid punishing

Gipson twice for the same offense, if anything, it may have actually

compounded the double jeopardy problem by highlighting the subject of the

prosecutor’s improper exhortation.

81
Ante at 3.
82
R. at 46 (jury instructions at 12).

25
 For these reasons, I would conclude (as did the District Court) that

Gipson’s right to be free from double jeopardy was violated when the

prosecutor urged the jury to impose specific prison time for “each” of his prior

convictions.

Finally, like the District Court below, I cannot conclude that the actual

infringement of Gipson’s double jeopardy rights was harmless error. “When a

federal judge in a habeas proceeding is in grave doubt about whether a trial

error of federal law had ‘substantial and injurious effect or influence in

determining the jury’s verdict,’ that error is not harmless.” 83 I cannot say with

any certainty what Gipson’s jury would have done in Gipson’s case had the

prosecutor not made the comments at issue. But the prosecutor urged a

seventy year sentence, and the jury, even after being told that the minimum

sentence was twenty years and that there was no maximum sentence, imposed

exactly the sentence the prosecutor sought. As the District Court below

reasoned:

The prosecutor’s remarks . . . urged the jury to assess new
punishments (and thus multiple punishments) for prior convictions as
to which Petitioner had already received and served final sentences.
It is not possible under these circumstances to conclude “beyond a
reasonable doubt” that the jury did not sentence Petitioner at ten
years for the conviction at issue and 10 years each for Petitioner’s six

83
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

26
prior felony convictions. The 70-year sentence imposed in this case,
therefore, is constitutionally invalid. 84

I agree with the well-reasoned opinion below and would affirm.

84
Report and Recommendation (Mar. 23, 2000) (R. at 46).

27